Parenting By The Clock: The Best-Interest-of-the-Child Standard, Judicial Discretion, and the American Law Institute’s “Approximation Rule”

“Parenting by the Clock” is a scholarly paper authored by the well-regarded Richard Warshak. [1] Having scanned the original it is so in-depth and comprehensive that to post it here would be an epic task due to its length (85 pages). In the light of this, a short abstract / summary is posted in its place with the invitation to readers to access the original text for themselves.

Left: Dr. Richard A. Warshak

His paper dwells at some length on the gender bias many divorced fathers will be very familiar with but it is light on the knock-on effects this has for the prospects of either father custody or greater post-divorce participation by fathers.

Warshak highlights only some of the most obvious shortcomings of the present custody regime to be found in the US – though these are many – and points to the shortcomings of an alternative system known as the ‘approximation rule.’ These shortcomings take the form of both accidental and subconscious ‘perceptions’ (legalistic and otherwise), in how custody cases should be decided, e.g. does gender play a silent role, the insincere ‘best-interests-of-the-child standard’ and the mischievous ‘approximation rule.’ (NB. Britain’s Supreme Court only this week demonstrated again its gender bias when it awarded former wife money 20 years after her divorce from her once destitute former husband but is now the millionaire owner of the wind-power firm ‘Ecotricity’ – a business entirely created without her). [2]

While there may be legitimate disagreements over Warshak’s ‘delivery’, the main concern is that he does not go far enough in calling for a presumption of equal custody and appears to not quite fully understand the ramifications of such a lack of a legal presumption poses and how this might influence child custody litigation.

Those that have been through the divorce courts and the tumult of separation will be more than familiar with the phrase and term ‘parent with care’, sometimes abbreviated to PWC, or referred to as the primary parent presumption.

The practice of primary parent presumption is common in England where the primary caretaker presumption (or PCW), is a ‘passport’ to that parent being granted sole custody with concomitant exclusion powers for the other parent. The assumption that maternal care is always a safer or better bet is all too often shot to pieces as in the recent torture and homicide (one of dozens in the UK), of 8-year old Ayesha Chowdhury by her separated lesbian mother and partner. [3]

For those on ‘low incomes’ PCW also serves as a passport to welfare benefits and CSA payments which boosts their standard of living but fathers as the perceived ‘absent parent’ are totally denied and ignored.

What is not common in England, and Warshak describes, is the American ‘approximation rule’ when deciding custody rights.

This is deserving of a chapter all to itself (see Annex below), such is its importance as a false alternative and given the historic aversion shown by the English parliament for implementing shared parenting (which has to be witnessed to be believed). It is quite foreseeable that the ‘approximation rule’ with its capacity to appear to act fairly could hoax reformers into accepting it as a substitute for true ‘shared parenting.’ This is worrying.

Annex

The ‘approximation rule’

The ‘approximation rule’ is a theoretical mongrel of a concept and as dangerously misleading as any strutting Quisling. It is not surprising that it is the American Law Institute (ALI) who should have come up with this suggested alternative. First suggested by Elizabeth Scott (2000), it has only been adopted – so far as is known – by West Virginia. [4]

It involves the application (by lawyers, of course) of eight Principles, or factors, in deciding custody (however, most of the concern factors cited in the Principles are already incorporated into existing English law, i.e. child abuse, domestic violence, substance abuse, and persistent interference to a parent’s access rights etc).

The prevailing rule for deciding contested custody cases in the US, namely the best-interests-of-the-child standard, has long been criticised for being vague and allowing too much judicial discretion. The remedy to this perceived problem (and which we all know to be very real), sees the ALI proposing that in contested custody cases, courts allocate custodial time to each parent that approximates the proportion of time each spent performing care-taking functions in the past.

In an ideal world that might be possible but the practicability’s would be that custody battles would alter only their nuance. For that reason alone the ‘approximation rule’ solution is nothing more than a bandage when limb surgery is required.

When in operation the ‘approximation rule’ regime renounces investigations of multiple factors relevant to a child’s best interests (much like no-fault divorce and the Morton Report (1956) where it would simply be impossible to conduct a post-mortem into every divorce). Instead, the ‘approximation rule’ relies on one factor, that of care-taking duties in the past. Proponents would be right in their expectation that the rule would simplify the court’s investigation but at what price ? Are children’s best interests to be sacrificed for expediency ? How large a backlog would build up ? Or would the subtext be the imperative for lower-cost, faster and more-efficient judicial processes, and hang the consequences ?

What the ‘approximation rule’ does have in its favour is an emphasis on the benefits of out-of-court settlements – but that trend is already under way in the UK. It also has the benefit of such approximations of care applied only where custody decisions have to be decided by a court due to parental ‘intractability.’

Proponents also say that it would be limited to only contested cases and while that might be true its true stature would be its significance in casting a dark shadow over non-court custody arrangements.

The primary caretaker / PWC model depends on the assumption that mothers contribute the majority of child care – even if it is only by 1% or 2 % (e.g. 51% vs. 49%) – and also the perception of being biologically more predisposed to child care so that they become the natural choice.

Some have suggested that a fairer approach would be for a court to apportion time between the parties on the basis of how they apportioned time between themselves before the court became involved. The father might spend, say, 32% of his time children rearing and the remaining time is undertaken by the mother. Under the American ‘approximation rule’ the father might expect up to 32% of the child’s time being spent with him rather than the 0% he might expect under the PWC regime (under that system the parent who provides, say, 51% of the care-giving is “rewarded” with 100% of the custody).

However, a court can never determine with certainty just how much time historically each parent has spent caring for the child, but proponents argue that courts can strive for a result that comes as close to the pre-divorce allocation as possible. (this, one fears, depends too heavily on living in a perfect world).

In the minds of many this regime is as bad as the existing PWC model. Given the propensity for the interested parties to be economical with the truth in order to bolster their position one can’t see this regime working smoothly. Who can tell what exaggerations and lies will be told to nullify any of the benefits it may possess ? These inherent incentives that will lead to the preventing or limiting, or even denying the other parent’s ability to spend time with the child.

At first sight the ‘approximation rule’ seems to be fairer to each parent than the PWC alternative – after all it avoids a “winner-takes-all” scenario. But both regimes are blind alleys. They are going nowhere fast; both fail to address the core problem.

Firstly, neither addresses the needs of the child or the natural human rights of both parents. Rather the state and its apparatus, plus professionals assume they have a preferential call on what happens to essentially other people’s children and one wonders if the would be quite so sanguine were they so targeted ?

Secondly, neither addresses the need for fluidity in meeting a child’s needs as it grows and develops.

Thirdly, a couple’s circumstances are rarely the same after a divorce as they were before it. Economic realities are such that it is often necessary for both parents to be active in the labour market just to make ends meet.

All these are of critical concern but especially in cases involving un-married parents in the US (although in EU countries this has been equalised so that now there is little difference between married and un-married parents).

Nevertheless in common law, (US and UK) mothers have an automatic and exclusive right to sole custody – this would also be true in the UK after the Children Act 1989 (which abolished natural guardianship for fathers but not for mothers). Ancient laws of illegitimacy one ruled these matters but subsequent legislation has given both sexes “joint parental responsibility” (a term which remains blurry to this day), and nowhere near as powerful as ‘natural/legal guardianship’ status.

The ‘approximation rule’ shares with the ‘primary caretaker presumption’ the Achilles heel of ascribing greater importance to quantity of time rather than to the quality of care-giving.

It certainly overlooks the importance of the strength of the attachment bond between the child and each parent (the sheer humanity aspect), and in so doing opens the floodgates to an army of professionals and psychologists who all have an axe to grind, money to make, a story to tell, and a reputation to make.

Take, for instance, “A Defense of the Proper Use of Child Custody Evaluations.” This shows the matter of custody has become a conflict zone of near-esoteric research, forensically derived information, for the squabbling among academics and the jockeying of inter-professional arguments.

‘Perception’ is one of those words that has different connotations depending on whom and in what vein it is being used. It crops up in papers sometimes overtly and sometimes subliminally. In psychology (and perhaps sociology), perception is the process of recognising and interpreting sensory stimuli. In the more ordinary context, perception is the ability to see, hear; how we perceive or become aware of something using one’s senses. And in the context of legal processes and custody disputes this sensory awareness becomes the perception of pain of familial exile.

Nowhere is this exile more pronounced than in the forcible ‘taking into care’ and the permanent ‘forced adoption’ of children by Social Services. It is bad enough that family courts are held in secret but pressure about these abuses affecting innocent families has led to even the mainstream media questioning the rationale. Behind ‘closed door’ meetings doctors, social services and ‘experts’ with little or no accountability or redress, confiscate children and break up families (see. for instance, Channel 4 news 30/4/2012).

Strict legal perceptions, i.e. those held by the judiciary, have no need to pay any heed to this pain or the damage that is done to children over the longer term, or the need to aim for better “outcomes.” The judiciary don’t even attempt to absolve their conduct or reduce Society’s future expenditure for the subsequent unruliness and increasing youth crime which in part can be lain at their door. The legal industry is at pains to convey the perception that it is working tirelessly to find fair solutions to divorce and custody – but every solution found is always another money spinner for them.

To date the remit of the legal profession makes no allowances for encouraging children’s involvement with both parents after divorce. In this regard legal practice lags far behind the scientific literature where it is clear that such involvement is highly beneficial to the child.

Warshak’s paper, which is displayed is summary form below, principally deals the gender implications of custody decisions. Ideally, the summary should be read in conjunction with another Warshak article, that of “Securing Children’s Best Interests While Resisting the Lure of Simple Solutions” (see Journal of Divorce & Remarriage, 2015).

It would be fair to say that Warshak has specialised in this field for some years and an earlier paper worthy of review is, “The Approximation Rule, Child Development Research, and Children’s Best Interests After Divorce” (2007). Comparatively speaking this is a more easily handled abbreviated analysis of the ‘approximation rule.’

When it comes to gender bias institutions are simply not aware of their bias and the damage this wreaks. Only this week the French government has had to acknowledge that the drive for gender equality in education has resulted in addressing the needs of girl’s education at the expense of boys (see “France 24” TV news). [5]

In other words, boys are losing out in the government’s campaign of gender equality which is a version that ignores boys and thus overlooks true gender equality. UNESCO’s representative, Ms. Maki Hayashikawa (a Gender Education Specialist), said in the programme that this trend, i.e. of effectively segregating and marginalising boys, was to be found in most of the First and Second World nations.

An argument can be persuasively made that this is exactly what is happening in the divorce and custody courts and why young men are deterred from matrimony in the same way they are deterred from staying on at school and instead ‘drop out.’

Interestingly, Warshak’s articles also help to slap down the somewhat pretentious claim that family conflict ‘per se’ is bad and therefore an absolute bar to shared parenting. After all even in the best run household arguments and conflict will arise and learning how to handle this is essential for later adult life.

In the final analysis the offer to hold an enquiry into each child’s needs for divorce / custody purposes is a non-starter ref. Morton Report above). The debate over the efficacy of ‘no-fault’ divorce (which is the sole trigger for all this debate) showed such a scheme was nothing more than a legal fiction – a fig leaf attempting to cover up the embarrassing sight of vandalism performed for and by the state and its institutions.

Parenting By The Clock: The Best-Interest-of-the-Child Standard, Judicial Discretion, and the American Law Institute’s “Approximation Rule”

by Dr. Richard A. Warshak

The American Law Institute (ALI) proposes that in contested physical custody cases, the court should allocate to each parent a proportion of the child’s time that approximates the proportion of time each spent performing care-taking functions in the past.

Examined through the lens of child development research, the approximation rule is unlikely to improve on the best-interests-of-the-child standard. The approximation rule is difficult to apply, creates a new focus for disputing parents, renders a poor estimate of parents’ contributions to their child’s best interest, and overlooks parents’ intangible, yet significant, contributions to their child’s well-being.

Measuring past care-taking time is difficult, and quantity of care does not correlate with quality of care. A best-interests standard that retains the benefits to children of individualised decision-making is preferable in the context of contemporary reforms that accommodate new knowledge and encourage non-adversarial resolutions of custody disputes.

Summary

The American Law Institute (ALI) proposes that in contested physical custody cases the court should allocate to each parent a proportion of the child’s time that approximates the proportion of time each spent performing care-taking functions in the past.

Proposals from ALI strongly influence legislatures and judges. These articles analyze the “approximation rule” through the lens of child development research and conclude that the rule is unlikely to improve on the best-interest-of-the-child standard. This law review article is useful in cases where a custody evaluator recommends against shared custody because of the presence of conflict between the parents. The most recent scientific studies cited in this review show that children can benefit from joint custody even when parents are in conflict.

The article also makes the point that some conflict between parents is instigated primarily by one parent who seeks to marginalize the other parent’s relationship with the children. These studies can be used in cross-examination of mental health expert witnesses.

The law review scholarly article draws on a wealth of research (more than 400 footnotes) and concludes that:

1) public policies that encourage children’s involvement with both parents after divorce are consistent with the scientific literature and with prevailing public sentiment;

2) legislation should define the best interests of children to include parenting plans that maximize parenting time, when feasible and when no circumstances exist that endanger the health, safety, or well-being of the children or a parent, such as violence, abuse, gross neglect, severely compromised parenting due to severe mental illness or severe substance abuse, or extremely poor and harmful behavior toward the children;

3) evidence is accumulating that closer to equal distributions of time are linked to better outcomes for most children and parents;

4) an exact equal-time presumption, though, may bring similar liabilities as presumptions that elevate a single factor (e.g., gender, past care-taking, or children’s preferences) above all others. For instance, if a parent uses additional time with the children to undermine their love and respect for the other parent, this behavior may offset the benefits of more time with the parent who manipulates the children in this manner. But, more time with the parent who is the target of bad-mouthing may help children resist efforts to turn them against that parent.

The article defends the best-interests standard as preferable when it retains the benefits to children of individualised decision-making while operating in the context of contemporary reforms that accommodate new knowledge and encourage non-adversarial resolutions of custody disputes.

Hello! I apologize for being off topic. Dear Mr Whiston, I’m a Romanian reader interested in your article “McIntosh’s Machiavellian Mistake” as a voluntary translator for a Romanian NGO. Could you please tell me whether there is something missing or extra here: “But denying the infant input from both parents at any age is a recipe for disaster and that the denial of both parents (i.e. the infant overnight issue) is her target – and has always been her aim.” ?
It’s the 3rd paragraph in “Levers of power”.